Assault-Family Violence is one of the most common criminal cases in Travis County. In the last 3+ years there have been 7486 such cases.

Out of those, nearly half – 3551 – have been dismissed. Another 1621 are still pending. 961 are shown as “Final Dispositions” – probation or jail time.

Those three categories – dismissed, active, and final – make up most of the cases: 6133 out of 7486. The others go into categories such as “Prosecution Rejected” (182), “Warrant Issued” (165), and “Transferred”.

The disposition of any case depends on the facts in that particular case. However, it’s clear that for those charged with Assault-Family Violence, a dismissal is more likely than a conviction.

The great bulk of DWI’s were within four categories: “Active”, “Final Disposition”, “Dismissed” and “Probation”. Those four categories accounted for 96% of the cases.

“Active” is pending cases. Final Disposition is people who got jail sentences (or SWAP – Sheriff’s Weekend Alternative Program). A dismissal means the case was dropped – no sentence was imposed. Probation includes people who are on probation, or have finished it.

Total

12190

Active:

4332

36%

Final Disposition:

3101

25%

Dismissal:

2625

22%

Probation:

1601

13%

Total

96%

Other

4%

If you take out the active cases, the state’s success rate is pretty good. They got probation or jail in 4702 cases, while dismissing only 2625. That’s 64% conviction vs. 34% dismissal rate – again, backing out he active cases.

The reason there’s no simple answer is that there’s no single database that contains all the information. Instead, information is scattered all over the place.

In Austin, for example, APD keeps information about arrests. TCSO – the Travis County Sheriff’s Department – keeps information about bookings. Court Administration publishes a list of court dates, and the County Clerk keeps a file of all the legal documents.
All those records get created well before any judge or jury sees the case – and they don’t automatically go away or disappear, even if the case is eventually thrown out.

The Texas Department of Public Safety has a “Computerized Criminal History System” which consists of whatever information local agencies send to DPS. (According to DPS, information gets to them about 60% of the time.) Access is limited to law enforcement.

It also has a public website. For $3, you can search for anyone who has a name and date of birth.

The public website does not report dismissals or acquittals. It doesn’t report class “C” misdemeanors. And it doesn’t report cases that are pending. It DOES, however, report deferred adjudications. (Which is unfortunate and confusing, since DPS refers to its public website as a “conviction database,” and deferred adjudication is NOT a conviction.)
So if a case ended with a dismissal or an acquittal, it won’t show up there. If it hasn’t ended yet (if it’s still pending) it won’t be there. If it was a conviction for class “C” misdemeanor it won’t be there.

Otherwise, it might be.

For a lot of people, knowing whether it’s in the DPS public website is enough. The DPS public website is the cheapest and easiest way to do a criminal background check. If something’s not there, it probably won’t show up. But it’s important to realize that if somebody searches hard enough – or if they have access to law enforcement databases – the records are still there, and they will find them.

The only way to ensure that the records are destroyed or deleted is through an expunction.

The difference between an expunction and an order for non-disclosure is that an expunction is an order from a judge saying that records must be deleted or destroyed. An order of non-disclosure says that the records can’t be disseminated, except for certain law enforcement and governmental purposes.

An expunction, obviously, is what you want to get. Unfortunately – with some exceptions – you’re only eligible if your case was dismissed or never prosecuted, or you were acquitted. The statute is in Chapter 55.01 in the Texas Code of Criminal Procedure.

An order of non-disclosure, on the other hand, is for people who have successfully completed a deferred adjudication probation.

Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c); or

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person’s actual innocence; or

(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, and:

(a) at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested;

(c) at least three years have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a felony or if there was a felony charge arising out of the same transaction for which the person was arrested; or

(d) the attorney representing the state certifies that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution, including an investigation or prosecution of another person; or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void; or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

(a-1) Notwithstanding any other provision of this article, a person may not expunge records and files relating to an arrest that occurs pursuant to a warrant issued under Section 21, Article 42.12.

(a-2) Notwithstanding any other provision of this article, a person who intentionally or knowingly absconds from the jurisdiction after being released under Chapter 17 following an arrest is not eligible under Subsection (a)(2)(A)(i)(a), (b), or (c) or Subsection (a)(2)(B) for an expunction of the records and files relating to that arrest.

(b) Except as provided by Subsection (c), a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:

(1) the person is:

(A) tried for the offense for which the person was arrested;

(B) convicted of the offense; and

(C) acquitted by the court of criminal appeals or, if the period for granting a petition for discretionary review has expired, by a court of appeals; or

(2) an office of the attorney representing the state authorized by law to prosecute the offense for which the person was arrested recommends the expunction to the appropriate district court before the person is tried for the offense, regardless of whether an indictment or information has been presented against the person in relation to the offense.

(c) A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

(d) A person is entitled to have any information that identifies the person, including the person’s name, address, date of birth, driver’s license number, and social security number, contained in records and files relating to the arrest of another person expunged if:

(1) the information identifying the person asserting the entitlement to expunction was falsely given by the person arrested as the arrested person’s identifying information without the consent of the person asserting the entitlement; and

(2) the only reason for the information identifying the person asserting the entitlement being contained in the arrest records and files of the person arrested is that the information was falsely given by the person arrested as the arrested person’s identifying information.

The other day Jose Baez, the lawyer for Casey Anthony, asked a witness a question: “Were you asked to do a paternity test to determine whether Lee Anthony was Caylee’s father?”

The answer to the question was, “Yes, and he wasn’t.”

The jury didn’t hear that answer, though, because prosecutor Jeff Ashton objected, and the jury was sent away. Judge later struck the question, and told the jury not to consider it. (Whatever that means; a question, after all, is not evidence.)

Had the jury heard the answer, what would they have thought? After all, Lee was not the father. The result of the test is evidence of nothing. Even if he had been, it would have been evidence that Casey had engaged in an adult incestuous relationship; not that she was a victim as a child. Finally, even if she was a victim of child abuse, that doesn’t mean she didn’t kill her daughter.

But the jury never heard it. Instead, they were left wondering.

What conclusions are they likely to draw from that?

That the answer to the question would have hurt the prosecution?
That the answer to the question was, “Yes, Lee Anthony was the father”?
That the prosecutor doesn’t want them to have certain information?
That he doesn’t trust their judgment?
That he doesn’t trust his case?
That they’re being asked to make a life and death decision without all the facts?

The prosecutor has chosen to make a lot of objections. I’m not sure that’s a good strategy for the state in a death penalty case.

Sec. 25.11. CONTINUOUS VIOLENCE AGAINST THE FAMILY. (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a) or the exact date when that conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

This is an example of the trend in Texas toward the “he did something bad” approach to criminal justice. “We don’t have to agree exactly on what he did, or when he did it, so long as everybody agrees he did something.”

Combined with the Texas Court of Criminal Appeals approach to indictments (before the presentation of the indictment, but within the statute of limitations) we’re coming ever closer to defendants being tried without knowing what they’ve supposedly done until after they’ve been convicted – and possible not even then.

In the case of “Continuous Violence” statute, for example, a defendant could be convicted without anybody ever agreeing on exactly what it is that he had done.

Texas Penal Code 33.07 makes it a crime – a felony – to impersonate someone’s “persona” on the internet.

And I’ve written about Texas Penal Code 21.15 “Improper Photography” before, which is clearly unconstitutional.

The problem is that the process for challenging these laws is so time-consuming, and the Texas appellate courts so hostile, that few defendants are willing to challenge them. And when they do, prosecutors often back down. That way the laws stay on the books.

There are two models when it comes to charging and collecting legal fees. There’s a civil model, in which the lawyer sits at a desk and keeps careful notes of the time he spends on a case: the phone calls and faxes, the traveling here and there, the interrogatories and depositions, and all the mountains of paperwork certain kinds of civil cases tend to generate (specifically, the ones where the litigants are deep-pocketed).

New lawyers are recruited out of law school and told they need to generate X number billable hours, where X is enough to cover not just the new lawyer’s salary, but overhead and profits for the senior partners as well.

It’s soul-deadening, but lucrative work, and work most of my former classmates aspired to do.

Clients, not surprisingly, hate it.

Companies are attacking the billable hour out of a growing frustration with rising legal costs. “Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour,” said Cisco’s general counsel, Mark Chandler. In a speech at Northwestern University’s law school last January, he called the billable hour, “the last vestige of the medieval guild system to survive into the 21st century.”

The billable hour makes no sense, not even for lawyers. If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts.

Criminal defense attorneys, and other lawyers who represent people rather than corporations – and the poor rather than the rich – pretty much uniformly reject it.

The other model is the flat fee model. Under a flat fee agreement, the total amount the lawyer will be compensated is negotiated up-front. The lawyer gets no more, no less. If the case takes up more time than expected, the lawyer’s on the hook it. On the other hand, if he resolves it quickly, his pay is the same, but his hourly rate goes up.

The lawyer, in other words, assumes the risk that – at the outset – it’s often impossible to know how long the work will take. Which is appropriate, since the lawyer is in a better position than the client to take a guess.

The client, on the other hand, gets the certainty of knowing exactly what it’s going to cost, and can shop around, if he wants, for the best rate.

The State Bar of Texas, in its proposed rules changes, has decided one of these models is ethical, and the other is not.

Can you guess?

That’s right – flat fees are unethical.

You can read the gory details here. But the short version is that the Bar isn’t quite willing to outlaw flat fees outright.

Instead, they’re redefining flat fees as advance payments, which must therefore be kept in special trust accounts, which the lawyer may not touch until he earns them, by billing for his time at an hourly rate.

Sound familiar?

It’s a bit like saying you can have an apple if you like, so long as it’s orange, has orange juice inside, and is actually an orange.